This article from Bloomberg on the individual health insurance mandate is well worth a careful, thorough reading. ("Individual Mandate is Ryan Tax Credit by Other Name", Klein, Mar 28 2012.)
One thing I would add to the article: a primary argument against the constitutionality of the mandate is that it forces people to enter a "stream of commerce" (health care). But constitutionally, it is argued, the government can only regulate what people do if they choose to enter the stream of commerce.
The problem with this argument is that, by law, health care providers must provide a certain level of (emergency) care. This is guaranteed to anyone who needs it, whether or not they can afford to pay. Functionally, this is a form of "insurance" for everyone, including the uninsured. Thus, long before the individual mandate, there were laws bringing everyone into the health care "stream of commerce". The mandate simply carries those laws to their logical and fair conclusion, by requiring people who are receiving services to pay for them.
Therefore, a person who truly doesn't believe the government can force people to buy health insurance ought to be against laws which force the private market to provide it -- including emergency care. Are any of Obamacare's critics prepared to go that far?
Okay, since I assume this is not an April Fool’s joke, let me address your post and the referenced article. Actually, let me address the article first: (1) you can’t simply dismiss the argument that if the government has the power to do ‘x’ and ‘y’ accomplishes the same goal than ‘y’ should be okay too. That’s not true in life and it especially isn’t true with the Supreme Court where rulings establish precedence; and (2) the Republican Party does not hold a one-vote majority on the Supreme Court. If it did then no one would be wondering which way the Supreme Court would vote. Frankly I find that single reference to the Supreme Court so obscenely biased as to make the entire article not worth referencing.
ReplyDeleteNow about the post itself. I understand that everything we do in some way relates back to commerce. Frankly it does my MBA heart good to see anti-capitalist liberals (not you Freyguy) making that argument. But by the logic which invariably follows that “aha” moment, the Federal government can regulate anything it wants in any manner it wants. Maybe I hold too much reverence for “We the people…”, but I am just not an ‘ends justifies the means’ kind of guy. I believe in a Federal system of government. If liberals don’t, well, that’s an argument worth having. But I don’t think the Supreme Court should bless such unlimited Federal overreach without the decency of another Amendment.
About Obamacare per se: Access to insurance is a problem within the mess that is healthcare. But the bigger problem is cost. I have heard nothing from supporters of this encyclopedic sub-referenced sub-paragraphed 2,400 plus page monstrosity that is Obamacare that leads me to believe it will significantly bend the cost curve down; and it may even bend it up. And its implementation and partisanship will make needed reform more difficult to achieve in the future. Add to that the trillions of dollars in additional deficit and/or new taxes and it does not seem to me this is something that is worth torturing the Constitution and economy over.
You see Obamacare as a good and necessary thing. I see it as propelling us further down Hayek’s ‘Road to Serfdom.’ Ahead lies Obamamageddon. You are anxious to get there. I hope like hell the brakes work.
Fred,
ReplyDelete(1) Concerning the argument that if the government has the power to do ‘X’ and ‘Y’ accomplishes the same thing … etc., I don’t think the article dismissed it. It was duly noted. If anything, the article was being too generous, since it allowed the claim that there is a problem with ‘Y’ in the first place to go unchallenged (i.e., whether or not 'Y' accomplishes the same thing as ‘X’).
Constitutional scholars do not need the fact that Obama’s mandate is functionally equivalent to Ryan’s tax credit to find it constitutional. They simply notice that not buying insurance until you get sick (being a “free rider”) is a critical problem in regulating health care commerce. And Congress has the constitutional power to regulate commerce. The burden of evidence is on those who hold the curious view that requiring people to buy health insurance does not regulate health insurance.
(2) The article says the GOP holds a one-vote advantage on the Supreme Court. This claim, which you found “obscenely biased”: (a) is widely acknowledged; (b) is supported by the well-documented “unprecedented” partisanship of the Court in recent years (see Slate.com, “Split Definitive”); and (c) does not imply “no one would be wondering which way the Supreme Court will vote” (a one-vote advantage does not = a certain outcome).
Interestingly, before the Justices began questioning, most constitutional scholars were not wondering which way the Supreme Court would vote. The reason? Because constitutional law clearly does not invalidate the mandate. If anything, the importance of partisanship on the Court, even in such a clear-cut case as this, may have been underestimated.
When you say that “everything we do in some way relates back to commerce”, you’re setting up a straw man argument that inappropriately lumps together “everything we do”. Consider: some of the things we do are clearly protected by the constitution (voting, exercising free speech, going to church). Some of the things we do can only be related back to commerce “in some way” that is tortuous and implausible. In contrast, not buying insurance until you get sick is not a constitutionally-protected right (the mandate even allows an exemption for religious reasons); furthermore, it is directly linked to the commerce of health care.
Whether Obamacare bends the cost curve up or down is certainly debatable (and I would emphasize we should not be concerned only with the direct cost, but also the cost/benefit ratio). But if you’ve really heard nothing from supporters on this question, try Googling “preventive care”.
Freyguy,
ReplyDelete(1) I guess we will have to disagree on whether presenting no good answer constitutes being dismissive or overly generous. Also I was unaware that I agreed that any Republican proposal is constitutional although Ryan’s plan is unambiguously taxed based.
(2) Your argument about a Republican majority Supreme Court is prima facie wrong. I repeat if Republicans hold a one vote majority then everyone knows there is no possibility other than that Obamacare will be struck down. Since this is not the case the premise is wrong no matter who else ascribes to it. I don’t understand why a scientist of high intelligence is having trouble with this.
(3) If Kennedy and/or Roberts vote in favor of Obamacare it will obviously be with strong Constitutional reservations. The evidence of bias is on the Liberal wing. Everyone is 100% confident that each of the four Liberal Justices are in the tank for Obamacare and indeed they acted as cheerleaders during oral arguments. Of the Conservative Judges it is assumed that Thomas is a definite no vote with others less certain. Give each one of the four other justices an 80% chance of voting against and you get a 59% chance Obamacare passes. If each is 70% likely to vote against it individually Obamacare has a 76% chance of passing. Assume 60% and it’s almost a sure thing. Maybe that’s why the legal community was confident the gods of chance would bless Obamacare – either that or a lack of understanding of Marbury vs. Madison.
As to the merits and who thought what, the Administration was having so much difficulty defending the Constitutionality of the law that the legal community, particularly the Liberal wing, was in shock.
(4) I take exception to the straw man characterization. However what I should have said is that any financial transaction can be construed as interstate commerce and therefore by Liberal logic the Federal Government can preempt the State or individual on anything anytime money is involved. Liberals don’t seem to have a problem with that and maybe that’s the way it actually should work. It’s just that The Constitution says otherwise.
In terms of freedom of speech and religion however, it does not take great machinations to show strong Federal influence, albeit outside the Commerce Clause. For instance, free speech can be costly when class action lawyers are allowed to sue over company guidance that falls short. I have trouble with that since the shareholders wind up paying money to the (mostly) same shareholders with the lawyers taking a big cut. And religious institutions that express overt political support for a candidate should (but do not) lose their Federal tax exemption. This would be an issue except that both parties use the Church for their own purposes so neither side cares to make an issue out of it.
(5) I too am interested in the cost/benefit ratio. But I don’t have to Google “preventive care”. If you are talking about managed care, then I agree this holds exciting possibilities for cost care reductions. But as for preventive care per se articles I read on a fairly regular basis note medical authorities recommending the discontinuance of various tests and procedures because the cost/benefit does not warrant using them. That is generally followed by a public outcry and doctors saying they will do the tests and procedures anyway followed by a reconsideration of the policy. As far as I can determine if it was purely a cost/benefit consideration there would be a lot less preventive care.
Obviously it is easy to cite instances where an ounce of prevention would have been worth a pound (or a ton) of cure. And as individuals we often prefer having tests because if we are the one in a hundred or thousand or million that is affected, we want to know. I don't believe the evidence is anywhere near as compelling as you seem to think. One man’s preventive care is another man’s unneeded test. But that brings up rationing and I don’t want to go there.
Have a good Easter.
Fred,
ReplyDeleteThanks for your well-reasoned response.
I think you may have misinterpreted the Bloomberg article. The article says the GOP holds a one-vote "advantage" (not "majority") on the Court. I think this simply refers to the fact that appointing a majority of the Justices confers a statistical advantage to the appointing party, in general, over a large number of cases. That is why each party cares about appointing Justices. As you implicitly acknowledge in your analysis (3), a statistical advantage held by one party does not logically imply that everyone knows what will happen in each individual case. It would be ungenerous to interpret the phrase "one-vote advantage" as implying that every single Court case (and Obamacare in particular) will be decided in favor of the GOP. Of course you are right that, if that was true (and it clearly isn't), then no one would be wondering which way the Court will decide.
On preventive care: what exactly constitutes worthwhile preventive care is, as you say, something that should be recommended by medical authorities. But if insurance does not cover the preventive care recommended by medical authorities, then whatever they recommend is moot. Obamacare does not require, as you seem to fear, that every superfluous "preventive" test and procedure be covered by insurance. It only gaurantees coverage for preventive care that is recommended, as you suggest, by medical authorities, i.e. annual check-ups, healthy child visits, breast screenings for women and immunizations. Whether these preventive recommendations will bend the cost (or cost-benefit ratio) curve up or down is a debate I defer to public health experts; I was just pointing out that Obamacare gaurantees coverage for *recommended* preventive care, and that is the cost-benefit argument from its supporters (in case you hadn't heard it before).
I understand subtleties can be extremely important, but I am at a loss to understand the difference between a one-vote advantage and a one-vote majority. To me it means the same.
ReplyDeleteIn terms of simply making a point that Republicans appointed a majority (this time your word) I have reread the article to see if there was some subtlety or context I might have overlooked. I didn’t find any. Indeed Republican presidents nominated Warren, Brennan and Souter. Would you or the author have stated anything about Republicans having an advantage with those Justices?
On Obamacare the Republican concern is probably more about rationing than over testing. Over testing relates more to the need for tort reform. My concern is bringing costs under control. The trajectory of healthcare costs with or without Obamacare is unsustainable. And my strong belief is that the crisis point is a lot closer than most people think.